42 U.S.C. § 1996a — Traditional Indian religious use of pe-

Page 5242 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1996a this order be construed to impair enforceable rights to use of Federal lands that have been granted to third parties through final agency action. For purposes of this order, ‘‘agency action’’ has the same meaning as in the Administrative Procedure Act (5 U.S.C. 551(13)). SEC. 4. This order is intended only to improve the in- ternal management of the executive branch and is not intended to, nor does it, create any right, benefit, or trust responsibility, substantive or procedural, enforce- able at law or equity by any party against the United States, its agencies, officers, or any person. WILLIAM J. CLINTON. § 1996a. Traditional Indian religious use of pe- yote (a) Congressional findings and declarations The Congress finds and declares that— (1) for many Indian people, the traditional ceremonial use of the peyote cactus as a reli- gious sacrament has for centuries been inte- gral to a way of life, and significant in perpet- uating Indian tribes and cultures; (2) since 1965, this ceremonial use of peyote by Indians has been protected by Federal regu- lation; (3) while at least 28 States have enacted laws which are similar to, or are in conformance with, the Federal regulation which protects the ceremonial use of peyote by Indian reli- gious practitioners, 22 States have not done so, and this lack of uniformity has created hardship for Indian people who participate in such religious ceremonies; (4) the Supreme Court of the United States, in the case of Employment Division v. Smith, 494 U.S. 872 (1990), held that the First Amend- ment does not protect Indian practitioners who use peyote in Indian religious ceremonies, and also raised uncertainty whether this reli- gious practice would be protected under the compelling State interest standard; and (5) the lack of adequate and clear legal pro- tection for the religious use of peyote by Indi- ans may serve to stigmatize and marginalize Indian tribes and cultures, and increase the risk that they will be exposed to discrimina- tory treatment. (b) Use, possession, or transportation of peyote (1) Notwithstanding any other provision of law, the use, possession, or transportation of pe- yote by an Indian for bona fide traditional cere- monial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State. No Indian shall be penalized or dis- criminated against on the basis of such use, pos- session or transportation, including, but not limited to, denial of otherwise applicable bene- fits under public assistance programs. (2) This section does not prohibit such reason- able regulation and registration by the Drug En- forcement Administration of those persons who cultivate, harvest, or distribute peyote as may be consistent with the purposes of this section and section 1996 of this title. (3) This section does not prohibit application of the provisions of section 481.111(a) of Vernon’s Texas Health and Safety Code Annotated, in ef- fect on October 6, 1994, insofar as those provi- sions pertain to the cultivation, harvest, and distribution of peyote. (4) Nothing in this section shall prohibit any Federal department or agency, in carrying out its statutory responsibilities and functions, from promulgating regulations establishing rea- sonable limitations on the use or ingestion of peyote prior to or during the performance of du- ties by sworn law enforcement officers or per- sonnel directly involved in public transportation or any other safety-sensitive positions where the performance of such duties may be adversely affected by such use or ingestion. Such regula- tions shall be adopted only after consultation with representatives of traditional Indian reli- gions for which the sacramental use of peyote is integral to their practice. Any regulation pro- mulgated pursuant to this section shall be sub- ject to the balancing test set forth in section 3 of the Religious Freedom Restoration Act (Pub- lic Law 103–141; 42 U.S.C. 2000bb–1). (5) This section shall not be construed as re- quiring prison authorities to permit, nor shall it be construed to prohibit prison authorities from permitting, access to peyote by Indians while in- carcerated within Federal or State prison facili- ties. (6) Subject to the provisions of the Religious Freedom Restoration Act (Public Law 103–141; 42 U.S.C. 2000bb–1) [42 U.S.C. 2000bb et seq.], this section shall not be construed to prohibit States from enacting or enforcing reasonable traffic safety laws or regulations. (7) Subject to the provisions of the Religious Freedom Restoration Act (Public Law 103–141; 42 U.S.C. 2000bb–1), this section does not prohibit the Secretary of Defense from promulgating reg- ulations establishing reasonable limitations on the use, possession, transportation, or distribu- tion of peyote to promote military readiness, safety, or compliance with international law or laws of other countries. Such regulations shall be adopted only after consultation with rep- resentatives of traditional Indian religions for which the sacramental use of peyote is integral to their practice. (c) Definitions For purposes of this section— (1) the term ‘‘Indian’’ means a member of an Indian tribe; (2) the term ‘‘Indian tribe’’ means any tribe, band, nation, pueblo, or other organized group or community of Indians, including any Alas- ka Native village (as defined in, or established pursuant to, the Alaska Native Claims Settle- ment Act (43 U.S.C. 1601 et seq.)), which is rec- ognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians; (3) the term ‘‘Indian religion’’ means any re- ligion— (A) which is practiced by Indians, and (B) the origin and interpretation of which is from within a traditional Indian culture or community; and (4) the term ‘‘State’’ means any State of the United States, and any political subdivision thereof. (d) Protection of rights of Indians and Indian tribes Nothing in this section shall be construed as abrogating, diminishing, or otherwise affect- ing— Page 5243 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1997 (1) the inherent rights of any Indian tribe; (2) the rights, express or implicit, of any In- dian tribe which exist under treaties, Execu- tive orders, and laws of the United States; (3) the inherent right of Indians to practice their religions; and (4) the right of Indians to practice their reli- gions under any Federal or State law. (Pub. L. 95–341, § 3, as added Pub. L. 103–344, § 2, Oct. 6, 1994, 108 Stat. 3125.) Editorial Notes REFERENCES IN TEXT The Religious Freedom Restoration Act, referred to in subsec. (b)(6), (7), probably means the Religious Freedom Restoration Act of 1993, Pub. L. 103–141, Nov. 16, 1993, 107 Stat. 1488, which is classified principally to chapter 21B (§ 2000bb et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2000bb of this title and Ta- bles. The Alaska Native Claims Settlement Act, referred to in subsec. (c)(2), is Pub. L. 92–203, Dec. 18, 1971, 85 Stat. 688, which is classified generally to chapter 33 (§ 1601 et seq.) of Title 43, Public Lands. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 43 and Tables. § 1996b. Interethnic adoption (1) Prohibited conduct A person or government that is involved in adoption or foster care placements may not— (A) deny to any individual the opportunity to become an adoptive or a foster parent, on the basis of the race, color, or national origin of the individual, or of the child, involved; or (B) delay or deny the placement of a child for adoption or into foster care, on the basis of the race, color, or national origin of the adop- tive or foster parent, or the child, involved. (2) Enforcement Noncompliance with paragraph (1) is deemed a violation of title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.]. (3) No effect on the Indian Child Welfare Act of 1978 This subsection shall not be construed to af- fect the application of the Indian Child Welfare Act of 1978 [25 U.S.C. 1901 et seq.]. (Pub. L. 104–188, title I, § 1808(c), Aug. 20, 1996, 110 Stat. 1904.) Editorial Notes REFERENCES IN TEXT The Civil Rights Act of 1964, referred to in par. (2), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241. Title VI of the Act is classified generally to subchapter V (§ 2000d et seq.) of this chapter. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 2000a of this title and Tables. The Indian Child Welfare Act of 1978, referred to in par. (3), is Pub. L. 95–608, Nov. 8, 1978, 92 Stat. 3069, which is classified principally to chapter 21 (§ 1901 et seq.) of Title 25, Indians. For complete classification of this Act to the Code, see Short Title note set out under section 1901 of Title 25 and Tables. SUBCHAPTER I–A—INSTITUTIONALIZED PERSONS § 1997. Definitions As used in this subchapter— (1) The term ‘‘institution’’ means any facility or institution— (A) which is owned, operated, or managed by, or provides services on behalf of any State or political subdivision of a State; and (B) which is— (i) for persons who are mentally ill, dis- abled, or retarded, or chronically ill or handicapped; (ii) a jail, prison, or other correctional fa- cility; (iii) a pretrial detention facility; (iv) for juveniles— (I) held awaiting trial; (II) residing in such facility or institu- tion for purposes of receiving care or treatment; or (III) residing for any State purpose in such facility or institution (other than a residential facility providing only elemen- tary or secondary education that is not an institution in which reside juveniles who are adjudicated delinquent, in need of su- pervision, neglected, placed in State cus- tody, mentally ill or disabled, mentally re- tarded, or chronically ill or handicapped); or (v) providing skilled nursing, intermediate or long-term care, or custodial or residential care. (2) Privately owned and operated facilities shall not be deemed ‘‘institutions’’ under this subchapter if— (A) the licensing of such facility by the State constitutes the sole nexus between such facility and such State; (B) the receipt by such facility, on behalf of persons residing in such facility, of payments under title XVI, XVIII [42 U.S.C. 1381 et seq., 1395 et seq.], or under a State plan approved under title XIX [42 U.S.C. 1396 et seq.], of the Social Security Act, constitutes the sole nexus between such facility and such State; or (C) the licensing of such facility by the State, and the receipt by such facility, on be- half of persons residing in such facility, of payments under title XVI, XVIII [42 U.S.C. 1381 et seq., 1395 et seq.], or under a State plan approved under title XIX [42 U.S.C. 1396 et seq.], of the Social Security Act, constitutes the sole nexus between such facility and such State; (3) The term ‘‘person’’ means an individual, a trust or estate, a partnership, an association, or a corporation; (4) The term ‘‘State’’ means any of the several States, the District of Columbia, the Common- wealth of Puerto Rico, or any of the territories and possessions of the United States; (5) The term ‘‘legislative days’’ means any cal- endar day on which either House of Congress is in session. (Pub. L. 96–247, § 2, May 23, 1980, 94 Stat. 349.) Editorial Notes REFERENCES IN TEXT The Social Security Act, referred to in par. (2)(B), (C), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Titles XVI,